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Supreme Court Justices Do Not Mind Being “Bound” by an Ethics Code so Long as They Are Not “Legally” Bound by an Ethics Code

Posted by judicialethicsforum on Sunday, May, 1, 2011

In a recent House budget hearing, Supreme Court Justices Breyer and Kennedy responded to questions from Rep. Jose Serrano (D-NY) regarding recent calls to bind the Supreme Court to the Code of Conduct for United States Judges. Justice Kennedy responded first by stating the “Code of Conduct does apply to [us], in the sense that we have agreed to be bound by them.” He further stated that following the rules of ethics is “part of our oath and part of our obligation.” Justice Kennedy went on to caution, however, that it would be “structurally unprecedented” and a “legal problem” for the Judicial Conference of the United States (composed of district and circuit judges) to bind the Supreme Court to its rules.

Justice Breyer responded to the same question by stating that the Supreme Court Justices should be bound by the rules of ethics. He did not, however, believe that they were bound in a “legal” sense, and any such binding should not be accomplished by legislation. He also emphasized a few times that he follows the same rules—and the same procedures for interpreting those rules—as district and circuit judges. He then arguably contradicted himself by adding that being a Supreme Court Justice requires “you to think about it in a different way,” because unlike other federal judges, “you have a duty to sit.” [For a good work on the elusive “duty to sit,” see Jeffrey W. Stempel, Chief William’s Ghost: The Problematic Persistence of the Duty to Sit, 57 Buff. L. Rev. 813 (2009); see also Keith Swisher, Pro-Prosecution Judges, 52 Ariz. L. Rev. 317, 372-73 (2010).]

A video recording of the hearing can be seen here (the relevant testimony runs from approximately minute 26:00 through minute 33:00).